This page deals with how far volunteers – including unpaid interns – are protected by the Equality Act, under its employment provisions or under other Parts of the Act.
The first question is whether a volunteer or unpaid intern falls within the Equality Act employment provisions. Volunteers and interns are protected by the employment provisions if they can bring themself within one of various heads, as discussed below: Employment provisions of Equality Act.
In 2021 the government expressed the opinion that a person working to gain professional experience and who would likely consider themselves an intern will “in almost all cases” be protected by the EqA. The government said in its Sexual harassment consultation response, 2021 (below) that even without being paid, such a person would likely be considered a worker. For example, presumably they could fall within the work experience (below) provisions of the EqA, or could be a worker as having legally contracted to do work (below).
Charity volunteers range from helping out ad hoc through to more formal arrangements. Roughly speaking, it is likely to be easier to argue that a more formal arrangement is within the employment provisions of the EqA. However ultimately the question is whether the claimant can bring themself within one of the various heads discussed below: Employment provisions of Equality Act.
Apart from the EqA employment provisions, it may be worth considering whether a volunteer is protected by the EqA as a member of an association, or perhaps as a service user. This page also outlines those further possibilities.
Employment provisions of Equality Act
Many volunteers are not protected from disability discrimination by the employment provisions of the Equality Act. The main situations where a volunteer does fall within the Act’s employment provisions are as follows:
Work experience, including interns
Work experience is covered by the Equality Act. The Act says that work experience is to be seen as “vocational training” within s.56(1) EqA. It is therefore covered by the Act as an “employment service” if the individual is not already a worker within the employment provisions (and is not within the education provisions, below). For more, see my page Work experience, and para 11.59 of the Employment Code. Work experience related to an education course is sometimes covered by the Equality Act’s education provisions rather than its employment provisions: see my separate page on Work placements related to education courses.
Therefore an intern – or other volunteer – is covered by the EqA if it is work experience, even if they are not an ’employee’. In X v Mid Sussex Citizens Advice Bureau, 2012, the Supreme Court (at para 20) expressly mentioned an intern as someone who might well be covered by the equivalent provision of the EU directive.
Vocational training more generally can also be protected as an Employment service.
Legal contract to do work
If the person has a legal contract obliging them to work (albeit without pay), they may fall within s.83(2) EqA either as an “employee” or as someone who “contracts personally to do work”. The latter is commonly known as a “worker”, and is discussed on Employees, workers and beyond.
Newham Citizens Advice Bureau v Murray, 2000, is an example of a case where the EAT considered that the employment tribunal had too easily found a volunteer not to be within the Disability Discrimination Act (as it then was). However, various unsuccessful claims indicate that it is difficult to succeed on this argument, for example SE Sheffield Citizens Advice Bureau v Grayson (bailii.org), EAT, 2003.
Volunteering as way to assess suitability for employment
S.39(1)(a) EqA makes it unlawful for an employer to discriminate “in the arrangements [it] makes for deciding to whom to offer employment”. So the Equality Act might apply if an organisation uses volunteering as a way of assessing an individual’s suitability for particular work there.
On the facts, this was held not to apply in X v Mid Sussex Citizens Advice Bureau, 2012. Note that this case was based on different wording in the DDA, which talked about the “purpose” of the arrangements.
Special constables are covered by the police provisions in s.42 and 43 EqA.
(Personal offices under s.49 EqA include only those where the holder is entitled to remuneration.)
Volunteer as service user?
An organisation which takes someone on as a volunteer may sometimes be seen as providing the person with a service, so that the rules on provision of services to the public apply (Part 3 of the Equality Act).
EHRC’s How your organisation should treat volunteers (EHRC website) says “…it is possible that, when you are providing a volunteering opportunity for someone, this counts as providing them with a service.”
A disadvantage of falling with Part 3 rather than the employment provisions is that the claim needs to go to the County Court (or Sheriff Court in Scotland) rather than the Employment Tribunal. The same applies to a claim as a member of an association within EqA Part 7, as discussed in the next heading.
Where there is a selection process for volunteers, perhaps a claimant may find it more difficult to argue that in supplying the opportunity to volunteer, the organisation is supplying a service “to the public” within EqA Part 3.
Volunteer as member of an ‘association’
A. person volunteering as a member of an association may be covered by the provisions on ‘Associations’ in Part 7 Equality Act.
Example: A member of a political party does voluntary work for them, eg in an election campaign. She may be protected by the provisions on associations.
In some cases, becoming a volunteer may actually make the person a “member” of the association within Part 7 Equality Act.
Example: People who volunteer for St Johns Ambulance are commonly referred to as “members”. Even if they are not members in a formal consitututional sense (I don’t know whether they are), it might be argued that they fall within Part 7 Equality Act.
I’m indebted to the discussion of these and other issues in a paper by Tom Royston, Treating volunteers as ‘members of an association’ and the implications for English discrimination law in the International Journal of Discrimination and the Law, 2012: doi.org/10.1177/1358229112446367. The paper also suggests, for example, that a volunteer working for a Citizens Advice Bureau might be a “member” of the bureau (in the ordinary usage of the word “member”), so as to be protected under Part 7 of the Equality Act.
Does European Union law extend protection?
It has previously been argued that under the European Framework Employment Directive, employment-style protection against discrimination extends beyond the relatively limited categories of volunteers covered by the wording of the Equality Act employment provisions.
However, UK courts have held that the European Directive does not extend protection for volunteers:
X v Mid Sussex Citizens Advice Bureau, Supreme Court, 2012
The claimant was a volunteer adviser at Citizens Advice Bureau. She was asked to cease to attend as a volunteer, and alleged that this was disability discrimination. The tribunal found that her volunteer post did not fall within the Disability Discrimination Act 1995 (DDA). She argued that the EU directive required her to be protected. She said that the word “occupation” in the Directive covers part-time unpaid volunteers whose activities are a sufficiently significant or important part of the “employer’s” function. The Supreme Court disagreed, and refused to refer the matter to the EU Court of Justice. The Supreme Court considered that “occupation” in the Directive refers to being able to become a solicitor, or a plumber for example, rather than getting a post with a particular employer.
Sexual harassment consultation response, 2021
The government discusses interns and volunteers in part 4.3 of its Consultation on sexual harassment in the workplace: government response (gov.uk), July 2021. Note that the scope of the EqA is the same for disability as for sex discrimination.
The government distinguishes those “working for free” from “pure” volunteers. The first group, it says, “refers to those who are working to gain professional experience and who would likely consider themselves to be interns.” Examples highlighted by people responding to the consultation include those working in the film and television industry or working for political parties. The government believed that “in almost all cases these groups would, and should, be covered by the protections in the [Equality] Act, as even without being paid they would likely be considered to be workers.” In other words, the government considered that they are nearly always protected by the existing EqA provisions (discussed above).
As regards other volunteers, the government was concerned that extending EqA protections to people carrying out ad hoc, informal volunteering, or to those supporting small, volunteer-led organisations, could create a disproportionate level of liability and difficulties for the organisation. However the government said it might be appropriate to extend protection to those volunteering for large organisations whose employees would already be within the scope of the EqA, and to people volunteering in a more formal capacity that closely mirrored a workplace relationship. It is not clear whether the government intends to extend the current Equality Act protection for charity volunteers, either as regards sex discrimination or more generally.
Volunteer Rights Inquiry, 2011
Voluntering England conducted a Volunteer Rights Inquiry which issued its final report in March 2011. The Inquiry and Volunteering England asked all volunteer involving organisations to sign up to the ‘3R promise’ in order to raise standards of volunteer management. See Volunteer Rights (ncvo.org.uk).
Volunteering England is one of the bodies which wrote to the Citizens Advice Bureau’s solicitors in the X v Mid-Sussex CAB case above to support the CAB’s argument that volunteers are outside the scope of protection under the DDA/Equality Act and EU Framework Directive.
More on arguments for change
Volunteers were considered in the House of Commons Committee on the Equality Bill. The government set out in the committee why it did not intend to legislate for volunteers (col 440-441, Public Bill Cttee, 23rd June 2009 (parliament.uk)).
Earlier, in April 2009, the House of Commons Work and Pensions Committee had said it “strongly” believed that disability discrimination protection should apply to volunteers. “Volunteers currently have less legislative protection against discrimination than someone going into a sweet shop.” See paragraphs 134-137 of committee report The Equality Bill: how disability equality fits within a single Equality Act (parliament.uk).
See also Opinion Piece from the Guardian: Who will help the volunteers? (theguardian.com), 19th November 2009.